Walderbach v. Rompot

IN THE COURT OF APPEALS OF IOWA
No. 22-1245
Filed April 26, 2023
DAVID WALDERBACH and DONNA WALDERBACH,
Plaintiffs-Appellants,
vs.
BARB ROMPOT and VIRGINIA FOREST,
Defendants-Appellees.
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Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.
Plaintiff homeowners appeal from the grant of summary judgment to
defendants, who were officers or board members of a homeowners’ association.
AFFIRMED.
Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellants.
Adam D. Zenor and Allyson F. Aden of Zenor Kuehner, P.L.C., Des Moines,
and Joseph N. Van Vooren and John D. Simmons of Califf & Harper, P.C., Moline,
Illinois, for appellees.
Considered by Bower, C.J., and Badding and Buller, JJ.
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BULLER, Judge.
This appeal concerns a squabble among neighbors, made more dramatic
by leadership of the local homeowners’ association (HOA), now dressed up as a
defamation and interference-with-contract suit. The district court granted summary
judgment to the defendants on multiple bases, largely reasoning that the allegedly
defamatory statements were true and that the plaintiffs conceded a lack of injury
or damages. We affirm.
I. Background Facts and Proceedings
Plaintiffs David and Donna Walderbach moved into a condominium
governed by an HOA in Marion. Strife began within months, with conflict erupting
between the Walderbachs and Defendants Barb Rompot, Beth Fields, and Virginia
Forest, each of whom served as officers or on the governing board for the HOA.
Significant sources of conflict included the Walderbachs’ Doberman Pinscher,
Snickers; the Walderbachs’ use of a hot tub in their garage; and David’s use of
binoculars to view into a neighbor’s residence.
The crux of the issue with Snickers was allegedly poor pet-owner behavior.
The defendants reported that they had personally witnessed, or others had
reported to them, that Snickers was off-leash; that Snickers was walked on a too-
long leash, contrary to city ordinance; and that Snickers had been left tethered
outside. At least one of the defendants also made statements that at least arguably
suggested some insurers believed Doberman Pinschers to be “vicious” dogs.
During litigation, David admitted that Snickers had run off-leash, that the leash was
longer than six feet, that Snickers was tethered outside on at least one occasion,
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and that some insurers believed Snickers’s breed (though not Snickers
specifically) was vicious.
The garage hot tub became a topic of discussion in context of water usage
at the condominium building. Around the time the Walderbachs moved into the
building, there was an unexpected $50 water overage. At least one of the
defendants, in their official capacities on behalf of the HOA and using letterhead,
sent correspondence to the Walderbachs about whether the garage hot tub was
the source of increased water usage. A plumber ultimately opined that the source
of the water overage was “inconclusive,” leading the HOA board to prorate the
overage bill equally among all owners, for a grand total of $12.50 per unit. The
correspondence explained that “no ‘cause’ was found” for the water overage and
noted that David denied his hot tub was the source of the water loss.
In addition to the drama surrounding Snickers and the hot tub, a neighbor
spotted David using binoculars to peer into another neighbor’s residence. In
deposition, David admitted to using the binoculars to look into a residence, and
Donna admitted she was with David at the time.
According to the Walderbachs, the three defendants made statements
regarding all of the above issues. David was subsequently elected as the new
president of the HOA’s board and then filed a lawsuit against the defendants
alleging defamation, interference with contract, and trespass. The trespass claim
was voluntarily dismissed, as were claims against Defendant Fields. After
depositions and motion practice, summary judgment was granted to the remaining
defendants. The Walderbachs appeal.
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II. Preservation of Error
Error preservation is disputed as to the defamation claims. We conclude
error was preserved as to allegedly defamatory statements concerning Snickers,
the hot tub, and David being a “peeping Tom.” We find error was not preserved
as to additional claims sprinkled in the facts section of the Walderbachs’ appellate
brief, including statements that David was “above the law,” that he made
“outlandish accusations,” and that the HOA experienced late payments. These
claims were not sufficiently developed below, were not litigated, and were not ruled
upon. They cannot be the basis for relief now, and we limit our review accordingly.
See State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999) (“Nothing is more basic
in the law of appeal and error than the axiom that a party cannot sing a song to us
that was not first sung in trial court.”).
III. Standard of Review
Summary judgment is appropriate when “there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of
law.” Iowa R. Civ. P. 1.981(3). Evidence “is viewed in the light most favorable to
the nonmoving party,” but “the nonmoving party may not rest upon the mere
allegations of his pleading [and] must set forth specific facts showing the existence
of a genuine issue for trial.” Hlubek v. Pelecky, 701 N.W.2d 93, 95 (Iowa 2005).
“Speculation is not sufficient to generate a genuine issue of fact.” Id. at 96.
IV. Discussion
The two buckets of claims before us concern alleged defamation and
alleged interference with a contract. We affirm the grant of summary judgment as
to both.
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A. Alleged Defamation
Under Iowa law, a defamation claim has six elements:
(1) publication,
(2) of a defamatory statement,
(3) which was false and
(4) malicious,
(5) made of and concerning the plaintiff,
(6) which caused injury.
Bierman v. Weier, 826 N.W.2d 436, 443 (Iowa 2013). Truth “is an absolute
defense.” Huegerich v. IBP, Inc., 547 N.W.2d 216, 221 (Iowa 1996). The
substantial truth of a statement entitles a defendant to summary judgment:
If the underlying facts as to the gist or sting of the defamatory charge
are undisputed, the court may determine substantial truth as a matter
of law. In that event, the test, for summary judgment purposes, is
whether the plaintiff would have been exposed to any more
opprobrium had the publication been free of error.
Behr v. Meredith Corp., 414 N.W.2d 339, 342 (Iowa 1987) (internal citaiton
omitted).
As a threshold matter, throughout this litigation the Walderbachs failed to
allege specific statements that they claim were defamatory. While we could
perhaps end the analysis here and summarily affirm, we review three broad
categories of statements identified by the district court below and addressed by
the defendants in their brief on appeal:
• Statements regarding Snickers;
• Correspondence regarding the water overage and its potential
connection to the garage hot tub; and
• Statements regarding David being a “peeping Tom.”
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For these categories of statements, we find no genuine dispute that these
statements were substantially true, and the defendants were entitled to summary
judgment.
First, as to Snickers, there is a lurking issue about whether the statements
at issue are “of and concerning the plaintiff,” as these statements are really about
Snickers rather than the Walderbachs, and Snickers is not a party to this lawsuit.
We bypass this concern, in part due to on our commonsense understanding that
complaints about a “bad dog” are commonly understood as complaints about “bad
owners,” and at least arguably concern the plaintiffs. But even if this is so, the
Walderbachs conceded the substantial truth of the defendants’ statements. David
admitted in sworn testimony that some insurance companies view the Doberman
Pinscher as “a vicious dog breed,” that Snickers ran “at large” without a leash, that
Snickers was on a leash in excess of six feet contrary to Marion City Code, and
that Snickers had been tethered to a tree. With truth as an “absolute defense,” the
district court correctly determined these claims do not survive summary judgment.
See Huegerich, 547 N.W.2d at 221; Behr, 414 N.W.2d at 342.
Second, regarding the water dispute, we bypass a concern related to
whether the statements at issue were published to third parties and focus on the
truth of the statements. The letters detail the defendants’ suspicion that the garage
hot tub was the source of the water overage, but they note that “no cause” was
found and that David denied responsibility. David admitted in sworn testimony that
these statements were accurate. Truth, as an absolute defense, also bars this
claim as a matter of law. See Huegerich, 547 N.W.2d at 221; Behr, 414 N.W.2d
at 342.
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Third, regarding statements that he was a “peeping Tom,” David admitted
to using binoculars to spy on at least one of his neighbors. We are somewhat
hamstrung in assessing this argument due to the Walderbachs’ appellate briefing,
as they do not make any clear argument specific to this statement. Their argument
below was that a “peeping Tom” necessarily violates an Iowa criminal statute, such
as the crime of trespass codified at Iowa Code section 716.7 (2020). The district
court impliedly rejected this contention, and we do so explicitly. We find David’s
admission to using binoculars to spy on a neighbor approximates the common and
historical understandings of what it means to be a “peeping Tom,” even without an
admission to prurient purposes. See Peeping Tom, Black’s Law Dictionary (11th
ed. 2019) (“Someone who spies on another (as through a window), usu. for sexual
pleasure; VOYEUR.—Also termed peeper.”); Lisa F. Wu, Peeping Tom Crimes,
28 Pac. L.J. 705, 705 n.1 (1997) (tracing the historical origin of “peeping Tom” to
1040 England, when Lady Godiva rode naked through the streets, the townspeople
were ordered to draw their curtains and not look at her, and Tom the tailor defied
the order and was struck blind). Because truth is an absolute defense to
defamation, and David admits the substantial truth of the statement, summary
judgment was correctly granted. See Behr, 414 N.W.2d at 342.
Last, for at least the first two claims (about Snickers and the water), we note
the Walderbachs appear to have conceded the lack of damages and reputational
harm. As our supreme court once said, “Hurt feelings alone cannot serve as the
basis of a defamation action.” Johnson v. Nickerson, 542 N.W.2d 506, 513 (Iowa
1996). We agree with the district court that the failure to allege facts supporting
damages and reputational harm is independently fatal to the Walderbachs’ first two
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defamation claims, and we affirm on this additional basis. The defendants were
correctly granted summary judgment.
B. Alleged Interference with Contract
The tort of intentional interference with an existing contract has five
elements:
(1) plaintiff had a contract with a third-party;
(2) defendant knew of the contract;
(3) defendant intentionally and improperly interfered with the
contract;
(4) the interference caused the third-party not to perform, or made
performance more burdensome or expensive; and
(5) damage to the plaintiff resulted.
Green v. Racing Ass’n of Cent. Iowa, 713 N.W.2d 234, 243 (Iowa 2006) (quoting
Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 399 (Iowa 2001)).
The Walderbachs failed to generate a fact question on virtually all of these
elements. We agree with the district court that there is no factual dispute the
defendants’ conduct at issue was undertaken in their role as officers or board
members of the HOA. As a result, no third-party contract existed for the
defendants to have allegedly interfered with. We also agree with the district court
that, while David may assert that the HOA bylaws did not allow him to do as he
pleases, these restrictions all existed before he moved into the condominium
governed by the HOA, and they are not the product of any tortious act. In other
words, the defendants correctly and in good faith enforced the covenants and other
restrictions, which by definition is not “improper” interference. Last, we agree with
the district court that the Walderbachs have not alleged injury or damages; the
Walderbachs were not required to give up Snickers or the garage hot tub, and the
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water overage was paid evenly between all residents of the building. Summary
judgment was correctly granted.
AFFIRMED.